Goldstone Injustice

It looks like law, but it's just politics.

Much has been written and said about the inaccuracies, shortcomings and the moral inversion of the United Nations Human Rights Council's Mission presided over by Judge Richard Goldstone and his three fellow members. Most critics have understandably addressed the political and military issues involved. It is important, however, also to deconstruct the Goldstone Mission's Report from a legal point of view.

This is so because the report uses the veneer of respectability that comes with legal methodology, and with the presence of an internationally respected judge, to gain credibility. Law is a very powerful weapon to give respectability to contemptible actions and opinions. The South African Apartheid Government was very legalistic in its approach to racial oppression, and was punctilious about promulgating proper laws, and about maintaining a fully functioning judiciary to give the façade of respectability to its repugnant policies.

The United Nations, through its various organs, but particularly through its Human Rights Commission, uses the superficial veneer of law and legal methodology to give credence and credibility to its anti-Israel agenda. The Goldstone Mission is a case in point. Careful analysis reveals that the legalities utilized are merely a cover for a political strategy of deligitimizing Israel. Judge Goldstone claims that the Mission "is not a judicial enquiry [but is] a fact-finding mission."

This is a distinction without a difference. The Mission's Report makes numerous factual findings, and some legal, just as if it were a judicial body.

The Report could have salvaged some measure of integrity had it stated that its findings, both legal and factual, were only prima facie. It did not do so.

Judges make factual and legal findings which have practical implications. There are very real consequences for Israel resulting from the findings of the Mission. Apart from holding Israel liable in international law to pay war reparations, Judge Goldstone refers the findings to the highest authorities of international law, including the United Nation's General Assembly and the Security Council, and he recommends the commencement of criminal investigations in the national courts of the state signatories to the Geneva Convention of 1949. Of course, the Report also inflicts very great and real harm to Israel's reputation in the court of world opinion. This has serious political, economic and military implications for Israel's future, and for its very survival.

The Goldstone Mission is replete with procedural and substantive injustices.

Any civilized legal system requires that justice be done on two levels: procedural and substantive. The Goldstone Mission is replete with procedural and substantive injustices. From a procedural point of view, there are four main areas of injustice.

Firstly, the Human Rights Council's Resolution S-9/1 establishing the Mission expressly states that it "[s]trongly condemns the ongoing Israeli military operation [in Gaza] which has resulted in massive violations of the human rights of the Palestinian people," and in so doing pre-judges the guilt of Israel. The Resolution refers many times to Israel's guilt in a very lengthy document which is phrased in wide, undisciplined and aggressive language. Furthermore, it calls upon the Mission to investigate Israel's conduct and not that of Hamas. Although Goldstone and the President of the Human Rights Council purported to extend the ambit of the mandate, the legal basis for their doing so without the express authority of the Council is not clear.

The second procedural injustice is that the members of the Mission publicly expressed beforehand their opinions on this conflict. The most explicit in this regard, Professor Christine Chinkin, was one of the signatories to a letter published in the Sunday Times of London which stated that "Israel's actions amount to aggression, not self-defense, not least because its assault on Gaza was unnecessary." The letter is published under the heading "Israel's bombardment of Gaza is not self-defense - it's a war crime."

The other three members, Judge Richard Goldstone, Hina Jilani and Desmond Travers, all signed a letter initiated by Amnesty International stating: "Events in Gaza have shocked us to the core." Thus, all four members of the Mission, including Goldstone himself, expressed public opinions concerning the Gaza conflict before they began their work.

Thirdly, the Goldstone Mission violated another basic principle of justice, audi alteram partem - let the other side be heard. At least due to the procedural injustices already referred to, the State of Israel correctly refused to cooperate with the Mission. Once it had done so the Mission ought, if it were objective and fair, to have accepted Israel's right to remain silent and then ought to have desisted from making findings whether factual or legal. But it did not do so, and as any lawyer knows unanswered allegations often prove unreliable and in almost all conflict situations there are serious disputes of fact, and often of law as well.

The Mission's findings were based on accepting the allegations of only one party to the conflict. The Mission did not try to cross-examine or challenge the witnesses in any real way. There is a lengthy, fascinating article by Jonathan HaLevi of the Jerusalem Center for Public Affairs in which he analyses in detail the methodology employed by the Mission in respect of witnesses. He demonstrates that there was a lack of adequate cross-examination of the testimony of the witnesses. Unproven allegations of Hamas officials were accepted as established facts. Even the most basic questions were not asked; when, for example, allegations were made of Israel's bombing civilian installations, witnesses were not asked whether there were Hamas fighters or weaponry in the vicinity, or whether any attacks had been launched from the area.

There is a fourth procedural injustice which undermines the integrity and credibility of Judge Goldstone and the three other members of the Mission: There simply was not enough time to do the job properly.

Any lawyer with even limited experience knows that there was just not sufficient time for the Mission to have properly considered and prepared its report. One murder trial often takes many months of evidence and argument to enable a judge to make a decision with integrity. To assess even one day of battle in Gaza with the factual complexities involved would have required a substantial period of intensive examination. According to the Mission's Report, the Mission convened for a total of 12 days.

They say that they considered a huge volume of written and visual material running into thousands of pages; they conducted three field trips; there were only four days of public hearings; and yet in a relatively short space of time the members of the Mission agreed to about 500 pages of detailed material and findings with not one dissenting opinion throughout.

They made no less than 69 findings, mostly of fact, but some of law and within those 69 there were often numerous sub-findings.

All of this was quite simply physically impossible if the job had been done with integrity and care.

The fourth procedural injustice also demonstrates the total sham of this process.

Goldstone and his Mission impute the worst of intentions to the actions of the State of Israel.

The substantive injustices of the Goldstone Mission's Report are too numerous to mention in this article, but one illustrates how far the Mission was prepared to go, and that relates to the very important legal element of intent. Goldstone and his Mission impute the worst of intentions to the actions of the State of Israel, finding that Israel's conduct was motivated by a desire to repress and oppress, and to inflict suffering upon the Palestinian people, and not primarily for the purpose of self-defense. It does this without any evidence and then, without any supporting evidence, asserts that many of Israel's military operations such as that of Lebanon were motivated by the same goal.

The Mission fails to mention a modern leading military expert, Colonel Richard Kemp (the former commander of British forces in Afghanistan), who said, "From my knowledge of the IDF and from the extent to which I have been following the current operation, I do not think there has ever been a time in the history of warfare when an army has made more efforts to reduce civil casualties and deaths of innocent people than the IDF is doing today in Gaza."

By contrast, on the Palestinian side, there is very clear evidence as to Hamas's intentions - the Hamas Charter openly calls for the destruction of Israel, irrespective of borders. It also calls for the murder of all Jews worldwide. Hamas's clear intention was to murder as many Israeli civilians as possible and to use its own civilian population as human shields. But not a word of Hamas's expressly stated intentions appear in the report.

One aspect of the evidence, presented to but not accepted by the Goldstone Mission, was that of Hamas leader Fathi Hammad, who said: "This is why we have formed human shields of the women, the children, the elderly and the mujahideen, in order to challenge the Zionist bombing machine. It is as if we are saying to the Zionist enemy: We desire death while you desire life."

These procedural and substantive injustices demonstrate the complete lack of integrity and fairness of the process. It looks like law, but it is not. It is just politics.

There can never be peace without justice and truth.

The Goldstone Mission is a disgrace to the most basic notions of justice, equality and the rule of law. And it is dangerous. Injustice will only lead to more death and destruction.

The Talmud says "The world stands on three things: truth, justice and peace." These three values are linked. There can never be peace without justice and truth.

The Goldstone Mission is unjust and wanting in truth. It has, therefore, harmed the prospects for peace in the Middle East.

The opinions expressed in the comment section are the personal views of the commenters. Comments are moderated, so please keep it civil.

Visitor Comments: 11

(11)
igor bartolic,
March 19, 2015 10:51 PM

United

Hashem love Israel Jews and Gentiles who love Israel.We are the one and have Jewish soul.Hashem will bless Us.3 Temple will be when we are be united like one.Jewish will help us with teaching to be like one.

(10)
Avner Eliyahu Romm,
November 6, 2009 10:40 AM

Ehud Barak and Juda Bejamin deserve it

Before the Millennium celebrations, when the Palestinian Authority invited Yugoslav government officials to Bethlehem, Israel (under Barak) threatened that should they come, they would be handed (as "war criminals") to the Goldstones in the Hague. Juda Benjamin came to South Africa to express his opposition to the UN, together with his support for Goldstone (before the later turned against the Israeli army). So these two deserve being charged and prosecuted for possible war crimes, wheather they committed them or not.

(9)
Jeff G,
October 22, 2009 8:43 PM

1 legal inaccuracy

Great article, pointing out the injustices of the UN inquiry. One criticism, though: Rabbi Goldstein states that "the Mission ought, if it were objective and fair, to have accepted Israel's right to remain silent and then ought to have desisted from making findings whether factual or legal." Anyone on trial, whether in a truly just court or one of a more "kangaroo" variety, has the right to silence. Many defendants in criminal matters decline to take the stand or mount a defence. Some don't even show up for trial That does not mean that a trial cannot proceed.

(8)
HEFFES,
October 22, 2009 3:29 PM

very much consistent

in spite of the fact thar Israel responded, after the prolongued, 8 year harassment against its civil populations, this report shows an unbalanced and prejudiced approach, which is a shame to its sponsors

(7)
Natalie,
October 20, 2009 6:45 PM

well said!

I am so proud to have Rabbi Goldstein as our Chief Rabbi!!! What a brilliant, well thought out article!

(6)
Anny Matar,
October 19, 2009 10:19 AM

What can one expect of a Jew willing to partake in such farce?

How can anyone believe that THERE IS something called human rights. During eight long years when rockets fell on Israeli cities NO ONE opened their mouth and shouted BLOODY MURDER, but, only when we fnally decided to let them feel a liilte of our eight years, tried to stop this daily bombing that is when the "world" woke up but not to laud us for having waited that long but to accuse us, and who better than a Jew?? They can now claim that it is a Jewish judge who can't possibly be an anti-Semite!!!! and can freely be quoted and called Kosher, who certainly doesn't want to harm Israel????
As Golda Meir once said:"WITH SUCH FRIENDS WHO NEEDS ENEMIES!!" that I think answers Mr.Goldstone

(5)
Anonymous,
October 19, 2009 9:26 AM

The world turns around "Human Rights" .
Yes we do have human rights, but if we look at it from a religious perspective, be it Christian or Jewish, we do not have any rights, we only have privileges.
If the world could change the attitude of "Human rights" to "G_dgiven Privileges" we would have a much better and safer world.

(4)
sally,
October 19, 2009 5:33 AM

publish this!

Is there any way that this article reaches Judge Goldstone? he claims not to be anti Israel and is convinced of his findings. Maybe he's not as bad as we think, just plain stupid and we need to open his eyes! After all, he's not even a Jew in denial. He recognizes his heritage. It's scary to see an intelligent man be so gullible. If he believed all the arab rubbish, imagine what the rest of the world believes just from listening to the media.!

(3)
Anonymous,
October 19, 2009 1:42 AM

Brilliant truthful article by Rabbi Goldstein

I su0port and agree with this report by Rabbi Goldstein. I hope it is sent on to Richard Goldstone, who is personally very well-known to me from many years ago in South Africa. I could not believe that he could do what he did.

(2)
Anonymous,
October 18, 2009 10:25 PM

Change the context &you have the worst of intentions.

Settlers distanced from their homes without due process. These people invested in outlining communities to protect cities, yet they are treated without justice.According to Talmud, apply the lesson where itis appropriate.

I've been striving to get more into spirituality. But it seems that every time I make some progress, I find myself slipping right back to where I started. I'm getting discouraged and feel like a failure. Can you help?

The Aish Rabbi Replies:

Spiritual slumps are a natural part of spiritual growth. There is a cycle that people go through when at times they feel closer to God and at times more distant. In the words of the Kabbalists, it is "two steps forward and one step back." So although you feel you are slipping, know that this is a natural process. The main thing is to look at your overall progress (over months or years) and be able to see how far you've come!

This is actually God's ingenious way of motivating us further. The sages compare this to teaching a baby how to walk. When the parent is holding on, the baby shrieks with delight and is under the illusion that he knows how to walk. Yet suddenly, when the parent lets go, the child panics, wobbles and may even fall.

At such times when we feel spiritually "down," that is often because God is letting go, giving us the great gift of independence. In some ways, these are the times when we can actually grow the most. For if we can move ourselves just a little bit forward, we truly acquire a level of sanctity that is ours forever.

Here is a practical tool to help pull you out of the doldrums. The Sefer HaChinuch speaks about a great principle in spiritual growth: "The external awakens the internal." This means that although we may not experience immediate feelings of closeness to God, eventually, by continuing to conduct ourselves in such a manner, this physical behavior will have an impact on our spiritual selves and will help us succeed. (A similar idea is discussed by psychologists who say: "Smile and you will feel happy.")

That is the power of Torah commandments. Even if we may not feel like giving charity or praying at this particular moment, by having a "mitzvah" obligation to do so, we are in a framework to become inspired. At that point we can infuse that act of charity or prayer with all the meaning and lift it can provide. But if we'd wait until being inspired, we might be waiting a very long time.

May the Almighty bless you with the clarity to see your progress, and may you do so with joy.

In 1940, a boatload 1,600 Jewish immigrants fleeing Hitler's ovens was denied entry into the port of Haifa; the British deported them to the island of Mauritius. At the time, the British had acceded to Arab demands and restricted Jewish immigration into Palestine. The urgent plight of European Jewry generated an "illegal" immigration movement, but the British were vigilant in denying entry. Some ships, such as the Struma, sunk and their hundreds of passengers killed.

If you seize too much, you are left with nothing. If you take less, you may retain it (Rosh Hashanah 4b).

Sometimes our appetites are insatiable; more accurately, we act as though they were insatiable. The Midrash states that a person may never be satisfied. "If he has one hundred, he wants two hundred. If he gets two hundred, he wants four hundred" (Koheles Rabbah 1:34). How often have we seen people whose insatiable desire for material wealth resulted in their losing everything, much like the gambler whose constant urge to win results in total loss.

People's bodies are finite, and their actual needs are limited. The endless pursuit for more wealth than they can use is nothing more than an elusive belief that they can live forever (Psalms 49:10).

The one part of us which is indeed infinite is our neshamah (soul), which, being of Divine origin, can crave and achieve infinity and eternity, and such craving is characteristic of spiritual growth.

How strange that we tend to give the body much more than it can possibly handle, and the neshamah so much less than it needs!